The Supreme Court dodged a chance to set clear limits on extreme partisan gerrymandering, sending two high-profile partisan-gerrymandering cases back to the lower courts for further examination without ruling on the plaintiffs’ constitutional claims. The Justices’ opinions, however, set out a blueprint for handling future cases featuring partisan redistricting claims and left open the possibility that they may soon put some bounds on gerrymandering. The next window of opportunity for the Justices to hear argument on the big constitutional issue could be Spring 2019. The Brennan Center’s Tom Wolf takes a look at the five cases in the pipeline.

The lack of Supreme Court action this term hasn’t stopped a groundswell of legislative action on partisan redistricting that could affect mapmaking at the federal and state level before 2021. In Congress, Senator Michael Bennet (D-CO) introduced the Fair Maps Act of 2018, which would prohibit partisan gerrymandering and provide standing for voters to challenge gerrymandered maps on a state-wide basis. And in the states, citizens and lawmakers are pushing robust proposals for redistricting reforms and independent redistricting commissions.

Commerce Secretary Wilbur Ross’ decision to add a citizenship question to the 2020 census has provoked forceful pushback around the country.

Democratic lawmakers have been preparing legislation that would block the question from being added to the census form that will be sent to households in 2020, and over two dozen states and cities have joined forces in lawsuits challenging the question. Their suits—as well as suits by residents of Maryland and Arizona, Asian-American and Latino groups, immigration advocates, and others—argue that adding the question would lead to an undercount of the national population by discouraging noncitizens and their relatives from filling out the census. The suits contend that this would violate the government’s constitutional duty to conduct an “actual enumeration” of all people living in the country, all while throwing into disarray congressional apportionment and the allocation of federal funding to the states.

As a part of these suits, the Justice Department has released a one-page memo from Secretary Ross that states that the Department of Commerce and members of the Trump Administration were the originators of the request for a citizenship question—not the Department of Justice, as Secretary Ross previously claimed in a March 26 letter. This new memo from Secretary Ross casts doubt on the truthfulness of the explanations for the citizenship question that he has provided to the courts and Congress, as well as the real motives lurking behind the citizenship question.

In May, Ohio voters approved a bipartisan proposal designed to curb partisan gerrymandering. Issue 1—a constitutional amendment that changes how Ohio will draw its congressional districts—installs safeguards to prevent one party from dominating the redistricting process and passing an unfair map. The new process will go into effect in 2021. Under the new rules, lawmakers can only pass a map with a 60 percent supermajority in the legislature, including the votes of 50 percent of the minority party. If lawmakers cannot agree on a map, a seven-member commission will draft a plan. If the commission fails to pass a map with bipartisan approval, the legislature will have a second chance to pass a map. On the legislature’s second pass, the plan will have to win the vote of a supermajority of the legislature, including at least one-third of the minority party. If these efforts fail, the legislature can pass a map with a simple majority, but this map would be subject to a four-year time limit and a partisan fairness provision. This reform is much needed: As our Extreme Gerrymandering & the 2018 Midterm report found, Ohio has one of the most skewed congressional maps in the country.

BEST OF THE REST

To close a busy term of gerrymandering cases, the Supreme Court also ruled on a redistricting case challenging Texas’s 2013 congressional and state house maps, reversing a lower court’s findings of intentional discrimination, as well as rejecting racial gerrymandering and Voting Rights Act claims except with respect to one state house district.

Michigan election officials approved the inclusion of a citizens’ redistricting initiative on the November ballot. The proposal would create a thirteen-member citizen commission to draw the state’s congressional and state legislative districts. A ballot proposal committee known as Citizens Protecting Michigan’s Constitution had mobilized to block the initiative, going so far as to appeal a three-judge panel’s unanimous rejection of their claims that the measure was too expansive and required a constitutional convention to the Michigan Supreme Court. But, the court denied the group’s request for a stay, allowing election officials to let the initiative move forward.

Utah’s lieutenant governor certified that the redistricting ballot proposal in Utah, known as Better Boundaries, has met the signature threshold necessary to appear on the November ballot. If approved, the initiative would establish an advisory redistricting commission to draw the state’s political boundaries.

Colorado voters will also have a chance to vote this fall on two measures that would reform the state’s redistricting process. In a bipartisan effort, the state legislature passed two constitutional amendments that will create a twelve-member commission with an equal number of Democrats, Republicans, and unaffiliated voters to draw Colorado’s congressional and state legislative districts. The proposals also prohibit partisan gerrymandering and establish new criteria for map drawing.

The National Redistricting Foundation, part of Eric Holder’s National Democratic Redistricting Committee, has backed suits filed against the 2011 congressional maps in Alabama, Georgia, and Louisiana for violations of the Voting Rights Act.

Alabama has argued in a controversial lawsuit that the Census Bureau should not count undocumented immigrants at all for reapportionment. The House Judiciary Subcommittee on the Constitution and Civil Justice held a hearing during which Alabama’s attorney general, Steve Marshall, urged Congress to support his suit.